10/14/2016 12:55:12 PM 16CV21495

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2 3 4 5 6 IN THE CIRCUIT COURT OF THE STATE OF OREGON 7 8 FOR THE COUNTY OF MULTNOMAH

9 BRIAN RESENDEZ, RODICA ALINA RESENDEZ, MICHELE FRANCISCO, and Case No. 16CV16164 10 MATTHEW TALBOT; individually and on

behalf of all others similarly situated, 11 CONSOLIDATED AMENDED CLASS ACTION COMPLAINT 12 Plaintiffs,

13 v. CLAIM NOT SUBJECT TO MANDATORY ARBITRATION 14 PRECISION CASTPARTS CORP., an Oregon corporation, and PCC STRUCTURALS, INC., AMOUNT SOUGHT: OVER $10,000,000 15 ORS 21.160(1)(E) Defendants. 16 Filing Fee Under ORS 21.135(2)(a)

17 KELLEY FOSTER, JUAN PRAT- SANCHEZ, MARK McNAMARA, and 18 DEBRA TAEVS; individually and on behalf Case No. 16CV21495 19 of all others similarly situated,

20 Plaintiffs, 21 v.

22 PRECISION CASTPARTS CORP., an Oregon corporation, and PCC 23 STRUCTURALS, INC., 24 Defendants. 25

26 27 28 30 31 CONSOLIDATED AMENDED COMPLAINT KELLER ROHRBACK L.L.P. 1 1201 Third Avenue, Suite 3200 Seattle, WA 98101 32

1 INTRODUCTION

2 1. 3 Plaintiffs Brian Anthony Resendez, Rodica Alina Resendez, Michele Francisco, Matthew Talbot, 4 Kelley Foster, Juan Prat-Sanchez, Mark McNamara, and Debra Taevs (collectively, “Plaintiffs”), 5 individually and on behalf of a class of similarly situated persons, hereby file this Class Action 6 Complaint against Defendants Precision Castparts Corporation and PCC Structurals, Inc. (collectively, 7 “Defendants” or “Precision Castparts”), making the allegations herein upon personal knowledge as to 8 themselves and their own acts, and upon information and belief and based upon investigation of counsel

9 as to all other matters, as set forth herein.

10 2. 11 South Portland is home to thousands of families, vibrant businesses, and thriving schools. The 12 people who live and work in this neighborhood represent a broad range of ethnic, socio-economic, and 13 age groups. 14 3. 15 South Portland is also home to Precision Castparts, where it operates several facilities on

16 Johnson Creek Boulevard, including its Large Structurals Steel Operations and its Large Structurals 17 Titanium Operations (collectively, “Facility”). 18 4. 19 Toxic metals and other pollutants released from the Facility have contaminated peoples’ yards,

20 gardens, homes, and business, damaging property and diminishing property values, and posing 21 significant health risks. 22 5.

23 Plaintiffs, each of whom live and/or own real property in South Portland near the Facility, bring 24 this action pursuant to ORCP 32, individually and on behalf of those similarly situated, in order to 25 protect and seek redress for themselves, their families, and their community. 26 27 28 30 31 Class Action Complaint KELLER ROHRBACK L.L.P. 2 KAMPMEIER & KNUTSEN, PLLC SMITH & LOWNEY, PLLC 32

1 JURISDICTION AND VENUE 2 6. 3 This Court has jurisdiction over the parties and this case. Plaintiffs are citizens and residents of 4 Oregon. Defendants are Oregon corporations, and engage in regular, sustained business in Multnomah 5 County and maintain their principal places of business in Multnomah County. Defendant Precision 6 Castparts Corporation’s principal place of business is 4650 SW Macadam Ave., Ste. 300, Portland, 7 Oregon 97239. Defendant PCC Structurals, Inc.’s principal place of business is 4600 SE Harney Dr., 8 Portland, Oregon 97206. All claims alleged herein are based in Oregon law.

9 7. 10 Venue is proper in this Court. Substantial acts in furtherance of the alleged improper conduct 11 occurred within, and had and continue to have a profound effect in, Multnomah County. Plaintiffs 12 reside in Multnomah County and Defendants’ principal places of business are in Multnomah County and 13 the Facility lies partly in Multnomah County. 14 PARTIES 15 8.

16 At all times material, Plaintiffs were and remain citizens and residents of Oregon and resided and 17 owned real property in Multnomah County, Oregon, near Precision Castparts’ Facility. 18 9. 19 At all times material, Defendants owned and/or operated the Facility, a metal casting facility or

20 facilities located at or about 4600 SE Harney Dr., Portland, Oregon 97206. 21 FACTUAL ALLEGATIONS 22 A. South Portland’s Air 23 10. 24 Scientists with the United States Forest Service and Drexel University’s Dornsife School of 25 Public Health launched a study in 2013 collecting and analyzing samples of moss throughout the 26 Portland area (“Forest Service Study”). 27 11. 28 30 Certificate of Service KELLER ROHRBACK L.L.P. 31 1 1201 Third Avenue, Suite 3200 Seattle, WA 98101

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1 Moss has been used to detect air pollution in forests since the 1960s. Moss does not have roots, 2 but instead absorbs nutrients and water from the atmosphere, thereby also taking up and storing other 3 compounds present in the air. These contaminants are stored in the moss tissue, making a record of 4 pollution levels in the surrounding environment. 5 12. 6 The Forest Service Study samples were analyzed for heavy metals and polycyclic aromatic 7 hydrocarbons. These efforts revealed high concentrations of certain contaminants in “hotspots” around 8 the Portland metropolitan area.

9 13. 10 The Forest Service Study found high concentrations of arsenic in several hot spots in the 11 Portland area, including one in the vicinity of the Facility. The map below, based on maps The 12 Oregonian prepared using data from the Forest Service Study, is attached as Exhibit 1 to this complaint 13 (and by reference incorporated into this suit). It shows elevated levels of arsenic in moss adjacent to the 14 Facility. Specifically, levels of arsenic in moss adjacent to the Facility ranging from 0.37 to 0.59 15

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1 micrograms per kilogram are indicated in green, levels from 0.60 to 0.71 micrograms per kilogram are 2 indicated in yellow, and levels from 0.72 to 0.83 micrograms per kilogram are indicated in orange. 3 4 5 6 7 8

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23 The Forest Service Study also showed higher concentrations of nickel in a large area near the 24 Facility. This was the only significant nickel hot spot identified in the study. The map below, based on 25 maps The Oregonian prepared using data from the Forest Service Study, is attached as Exhibit 2 to this 26 complaint (and by reference incorporated into this suit). It shows elevated levels of nickel in moss 27 adjacent to the Facility, with red indicating 34.8 to 43.2 micrograms per kilogram of moss, orange 28 30 Class Action Complaint KELLER ROHRBACK L.L.P. 31 3 KAMPMEIER & KNUTSEN, PLLC SMITH & LOWNEY, PLLC

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1 indicating 26.3 to 34.7 micrograms per kilogram, yellow indicating 17.8 to 26.2 micrograms per 2 kilogram, and green indicating 9.3 to 17.70 micrograms per kilogram. 3 4 5 6 7 8

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1 2 15. 3 Together, the red, yellow, orange, and green areas depicted on the map below, which is attached 4 as Exhibit 3 to this complaint (and by reference incorporated into this suit), are defined as the “Affected 5 Area.” 6 7 8

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1 B. Precision Castparts’ Emissions. 2 16. 3 The Facility emits thousands of pounds of nickel, arsenic, chromium, and other toxic materials 4 and heavy metals into the air each year according to the Facility’s own records and EPA’s Toxic Release 5 Inventory. 6 17. 7 Plaintiffs expect the evidence will show that the Facility is the primary, if not exclusive, source 8 of the pollution hotspots identified in the Forest Service study in the areas shown in Exhibits 1, 2 and 3.

9 18. 10 Defendants emit excessive amounts of inorganic arsenic from the Facility into the air. 11 19. 12 Defendants have concealed and continue to conceal the nature and extent of their use and 13 emission of arsenic from Plaintiffs, Class Members, regulatory authorities, and the public. However, 14 Defendants have admitted that the Facility emits arsenic into the air. 15 20.

16 Defendants emit excessive amounts of nickel from the Facility into the air. 17 21. 18 There are no other known users of nickel in the vicinity of the nickel hotspot surrounding the 19 Facility.

20 22. 21 In each of the last four years, total nickel releases from the Precision Castparts’ Facility to 22 various environmental media - including air - exceeded two million pounds.

23 23. 24 Emissions from the Facility are a source of the arsenic hotspot documented by the Forest Service 25 Study. 26 24. 27 Emissions from the Facility are a source of the nickel hotspot documented by the Forest Service 28 Study. 30 Class Action Complaint KELLER ROHRBACK L.L.P. 31 6 KAMPMEIER & KNUTSEN, PLLC SMITH & LOWNEY, PLLC

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1 25. 2 The Facility emits a variety of other harmful pollutants into the air, including hexavalent and 3 other forms of chromium and other toxins. 4 26. 5 Particles of arsenic, nickel, chromium, and other metals and toxins from the Facility have entered 6 the air that Plaintiffs and Class Members breathe in their yards and in their homes, and been deposited 7 on the soil and other surfaces on the property owned or rented by Plaintiffs and Class Members. Those 8 particles have caused damage to the property, interfere with Plaintiffs’ use and enjoyment of the

9 property, their homes, and their neighborhood, and may present serious risks to the health and well- 10 being of the Plaintiffs and the Class Members. The contaminants found in the moss studies are not the 11 only pollutants PCC has emitted and that now contaminate the neighborhood. 12 C. Health Impacts of Precision Castparts’ Emissions 13 27. 14 Arsenic, nickel, and other toxic emissions from the Facility have the potential to cause serious 15 adverse health impacts, including increased risk of various cancers.

16 28. 17 Plaintiffs and Class Members are exposed to arsenic, nickel, and other toxins from the Facility 18 by direct inhalation and inhalation of deposited pollutants that become re-suspended in the air, through 19 contact with contaminated soils and surfaces, and through consumption of produce grown in the area.

20 29. 21 Because Precision Castparts’ emissions not only contaminate the air, but also contaminate the 22 soil, grass, plants, and homes throughout the community, people living in this neighborhood continue to

23 be exposed to dangerous levels of hazardous pollutants on a daily basis. Thus, even if Defendants ceased 24 the Facility’s emissions of these pollutants today, Plaintiffs’ and Class Members’ properties would 25 remain contaminated and damaged, and Plaintiffs and Class Members will most likely continue to be 26 exposed to these contaminants. 27 30. 28 Inorganic arsenic is a known human carcinogen. 30 Class Action Complaint KELLER ROHRBACK L.L.P. 31 7 KAMPMEIER & KNUTSEN, PLLC SMITH & LOWNEY, PLLC

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1 31. 2 Acute arsenic poisoning results in vomiting, abdominal pain and diarrhea, followed by numbness 3 and tingling of the extremities, and muscle cramping. In extreme cases, acute poisoning can be fatal. 4 32. 5 Breathing inorganic arsenic over extended periods can cause damage to blood vessels and nerves 6 in the hands and feet. Skin contact with arsenic can result in redness or swelling. Individuals exposed 7 to inorganic arsenic over several years have an increased risk of lung cancer. Chronic exposure to 8 elevated levels of arsenic, such as by consuming produce irrigated with arsenic-containing water is

9 known to result in skin lesions, hyperkeratosis, and cancers of the skin, bladder, and lungs. 10 33. 11 Other adverse health effects that may be associated with long-term ingestion of inorganic arsenic 12 include developmental effects, neurotoxicity, diabetes, and cardiovascular disease. 13 34. 14 Oregon DEQ established a human health benchmark of 0.0002 micrograms per cubic meter 15 (µg/m3) inorganic arsenic in air.

16 35. 17 Due to the serious risks associated with even intermittent exposure to particulate arsenic, the 18 Occupational Safety and Health Administration (“OSHA”) established a workplace air exposure limit of 19 10 µg/m3 inorganic arsenic, as well as requirements relating to exposure monitoring and control,

20 respiratory protection, protective work clothing and equipment, medical surveillance, and specialized 21 training. 22 36.

23 Like arsenic, certain forms of nickel, including nickel refinery dust and nickel subsulfide, are 24 known human carcinogens. EPA has classified nickel carbonyl as a probable human carcinogen. 25 37. 26 Nickel inhalation is associated with adverse immune system impacts and respiratory effects 27 including asthma, bronchitis, and decreased lung function. Studies link exposure to nickel refinery dust 28 and nickel subsulfide with increased risk of lung and nasal cancers in humans. Animal studies further 30 Class Action Complaint KELLER ROHRBACK L.L.P. 31 8 KAMPMEIER & KNUTSEN, PLLC SMITH & LOWNEY, PLLC

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1 link nickel inhalation with lung tumors and decreased sperm count. The California Environmental 2 Protection Agency has calculated a human health chronic inhalation reference exposure level of 0.05 3 µg/m3 for nickel. 4 38. 5 Skin contact with nickel is commonly associated with dermatitis. Animal studies associate oral 6 exposure to nickel with adverse reproductive and developmental effects. 7 39. 8 According to EPA, studies “have clearly established that inhaled chromium is a human

9 carcinogen, resulting in an increased risk of lung cancer.” EPA has classified hexavalent chromium as a 10 known human carcinogen and stated that this classification raised a concern for the carcinogenic 11 potential of trivalent chromium. Chronic chromium exposure can also cause bronchitis, pneumonia, 12 nasal itching, soreness, asthma, perforations and ulcerations of the septum, decreased pulmonary 13 function and other lung and respiratory problems. Inhalation or oral exposure may also result in 14 complications during pregnancy and childbirth, and adversely impact the liver, kidney, gastrointestinal 15 and immune systems, and possibly the blood. Skin contact with hexavalent chromium is associated with

16 dermatitis, sensitivity, and ulceration of the skin.

17 D. Plaintiffs’ Use and Enjoyment of their Property Has Been Impaired By Defendants’ Acts and Omissions 18 Plaintiffs Brian Anthony Resendez and Rodica Alina Resendez 19 40. 20 Plaintiffs Brian Anthony Resendez and Rodica Alina Resendez live in a home they own located 21 less than two-thirds of a mile northeast of the Facility and within the Affected Area. Mr. Resendez has 22 lived there since he purchased his home in 2005, and Mrs. Resendez has lived there since around 23 October, 2006. Mr. Resendez did not know when he purchased his home, nor could he have reasonably 24 known, that this home was located in a toxic air emission hot spot. 25 41. 26 The Resendezes have an active five-year old boy who likes to play outside. Harmful emissions 27 from Defendants’ Facility in the air and on their property have caused them to reduce their child’s 28 30 Class Action Complaint KELLER ROHRBACK L.L.P. 31 9 KAMPMEIER & KNUTSEN, PLLC SMITH & LOWNEY, PLLC

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1 playtime in their own yard and they have instead traveled to parks just to try to ensure that they are 2 allowing their son to play in a safe environment. 3 42. 4 The Resendezes are worried about adverse near-term and long term health effects that toxic 5 emissions from the Facility may have on them, their son, their eighty-one year old mother that lives with 6 them for much of the year, and their two dogs. They are concerned that spending too much time at their 7 own home could poison them and cause terminal illnesses. This had harmed their use and enjoyment of 8 their home.

9 43. 10 The Resendezes like to garden and have planted their vegetable garden for the last several years. 11 While they have cleared the garden for planting this year, they have not planted anything, nor do they 12 plan to plant anything, because they are worried that toxic emissions from the Facility may make their 13 vegetables unsafe to eat. This interference with their use and enjoyment of their property is a result of 14 the Defendants emissions. 15 44.

16 Toxic air emissions from the Facility have and will reduce the value of the Resendezes’ home 17 and undermine the efforts they have made over the years to improve the value of their property. The 18 Resendezes are considering turning this home into a rental property. It will be more difficult to rent the 19 home, and the Resendezes may suffer reduced rent payments due to Defendants’ emissions, as the

20 Resendezes feel morally obligated to disclose the known issues to any potential renters. 21 45. 22 Emissions have travelled from Defendants’ facility and landed on and remain on the Resendezes’

23 real and personal property without their consent. 24 Plaintiffs Michele Francisco and Matthew Talbot 25 46. 26 Plaintiffs Michele Francisco and Matthew Talbot live in a home Ms. Francisco owns located less 27 than 2,000 feet northeast of the Facility and in the Affected Area. Ms. Francisco and Mr. Talbot have 28 lived there since Ms. Francisco purchased the home in December 2015. Ms. Francisco and Mr. Talbot 30 Class Action Complaint KELLER ROHRBACK L.L.P. 31 10 KAMPMEIER & KNUTSEN, PLLC SMITH & LOWNEY, PLLC

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1 did not know when Ms. Francisco purchased her home, nor could they have reasonably known, that this 2 home was located in a toxic air emission hot spot. Had Ms. Francisco known about the toxic air 3 emissions from the Facility, she would not have purchased her home, nor would she and Mr. Talbot 4 have looked for a home in the area. Known toxic air emissions from the Facility have and will reduce 5 the value of Ms. Francisco’s home. 6 47. 7 After they learned of Defendants’ dangerous air pollution, Ms. Francisco’s and Mr. Talbot’s use 8 and enjoyment of the property declined significantly. Without knowledge of the toxic emissions

9 originating from Defendants’ Facility, Ms. Francisco purchased her home, in part, because of the 10 wonderful outdoor space and good sunlight it receives. Ms. Francisco and Mr. Talbot intended to use 11 the outdoor spaces around their home for vegetable gardening and entertaining guests, but since learning 12 about the toxic emissions from Defendants’ Facility, they have abandoned those plans. Just before 13 learning about the toxic emissions, Ms. Francisco and Mr. Talbot planted several grape vines that they 14 planned to use for wine-making. However, now they no longer plan to use the grapes due to concerns 15 about their health and the health of their friends and family with whom they planned to share the wine

16 due to the toxic emissions from Defendants’ Facility. Ms. Francisco also has a blackberry patch on her 17 property that she had hoped to harvest, eat and share, but her concern about potential heavy metal 18 poisoning of herself and others from toxic contamination from the Facility has caused her to refrain. 19 Mr. Talbot is also legitimately concerned about possibly breathing toxic contaminates from Defendants’

20 Facility when he maintains these blackberry bushes, mows the lawn, and does other yardwork. 21 48. 22 Simply being outside on their property concerns Ms. Francisco and Mr. Talbot because of

23 Defendants’ toxic emissions. Before purchasing the home, Ms. Francisco and Mr. Talbot lived in a 24 duplex with only a small patio for outdoor space, so abundant outdoor space where they could spend 25 time was something that drew them to their current home. However, because of their concerns over air 26 quality due to Defendants’ emissions, Ms. Francisco and Mr. Talbot now do not spend as much time 27 outside on the property as they otherwise would, decreasing their use and enjoyment. 28 49. 30 Class Action Complaint KELLER ROHRBACK L.L.P. 31 11 KAMPMEIER & KNUTSEN, PLLC SMITH & LOWNEY, PLLC

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1 Ms. Francisco suffers from allergies for which she gets shots two or three times per week. Ms. 2 Francisco’s allergies have progressively worsened since moving into her home. Ms. Francisco has 3 ripped out the carpeting in her house and replaced it with wood floors and used air purifiers in her home 4 to reduce the presence of allergens. Ms. Francisco is concerned about whether Defendants’ toxic air 5 emissions may be exacerbating or effecting her allegories, and that concern has caused substantial 6 interference with her use and enjoyment of her home. 7 50. 8 Ms. Francisco and Mr. Talbot have three cats that live with them, one of which has developed

9 asthma. Despite Ms. Francisco’s efforts to reduce allergens and air contamination in her home, the cat’s 10 asthma continues to worsen. Since moving into her home, the cat has started requiring an inhaler to treat 11 its asthma. Over the summer, it has been very warm in Ms. Francisco’s home and Ms. Francisco would 12 prefer to have all her windows open at night to control the temperature, but Ms. Francisco has noticed 13 that her asthmatic cat does better with the windows closed. Thus, Ms. Francisco occasionally keeps the 14 windows closed in the cat’s room when she otherwise would not, due to concern that the emissions from 15 Defendants’ Facility might irritate the cat’s asthma.

16 51. 17 Ms. Francisco and Mr. Talbot are worried about adverse near and long-term health effects that 18 toxic emissions from the Facility may have on them, their cats, and guests. That concern has caused 19 substantial interference with their use and enjoyment of their home.

20 52. 21 Emissions have travelled from Defendants’ Facility and landed on and remain on Ms. 22 Francisco’s and Mr. Talbot’s home, yard, and personal property without their consent.

23 24 Plaintiffs Kelley Foster and Juan Prat-Sanchez 25 53. 26 Plaintiffs Kelley Foster and Juan Prat-Sanchez live within half a mile of the Facility and within 27 the Affected Area. They purchased their home in 1998. They did not know when they bought their 28 30 Class Action Complaint KELLER ROHRBACK L.L.P. 31 12 KAMPMEIER & KNUTSEN, PLLC SMITH & LOWNEY, PLLC

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1 home, and could not have reasonably known, that it was located in a hotspot of toxic air emissions from 2 the Facility. 3 54. 4 Because the Facility has emitted nickel and other pollutants that have entered onto and currently 5 remain on their property, the value of the Foster and Prat-Sanchez property has declined. The property is 6 also worth less now that it is public knowledge that the property is so close to a notorious polluter and 7 located within the known toxic hotspot created by the Facility. 8 55.

9 Had Plaintiffs Foster and Prat-Sanchez known about the dangerous emissions from the Facility, 10 including nickel, arsenic, and chromium, they would not have bought their house or paid as much for it 11 as they did. 12 56. 13 After they learned of Defendants’ dangerous air pollution, Plaintiffs Foster and Prat-Sanchez’s 14 use and enjoyment of their property declined significantly. For example, they used to be avid gardeners, 15 and had previously derived significant pleasure from growing flowers and vegetables in their yard. Since

16 Plaintiffs Foster and Prat-Sanchez learned that their property is within the plume of Defendants’ nickel 17 and arsenic emissions, they have significantly curtailed their use of their garden and yard in order to try 18 to limit their exposure to Defendants’ emissions. 19 57.

20 Plaintiffs Foster and Prat-Sanchez have also changed their lives in other ways as a direct result of 21 having learned their home is within the plume of Defendants’ toxic air emissions. For example, when 22 the wind blows from the direction of the Facility, they avoid spending time in their yard and even avoid

23 time outside in their broader neighborhood. Plaintiffs Foster and Prat-Sanchez used to enjoy 24 neighborhood walks and gardening at the nearby Errol Heights Community Garden, where they would 25 visit and meet with friends and neighbors. But now that they understand their home, the Community 26 Garden, and their neighborhood are all within the zone of Defendants’ contamination, they have ceased 27 or dramatically curtailed these outdoor activities in order to try to reduce their exposure to Defendants’ 28 contaminants. 30 Class Action Complaint KELLER ROHRBACK L.L.P. 31 13 KAMPMEIER & KNUTSEN, PLLC SMITH & LOWNEY, PLLC

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1 Plaintiff Mark McNamara 2 58. 3 Plaintiff Mark McNamara lives within half a mile of the Facility. His home is within the 4 Affected Area. He purchased his home in 2012. He did not know when he bought his home, and could 5 not have reasonably known, that it was located in a hotspot of toxic air emissions from the Facility. 6 59. 7 Because the Facility has emitted nickel and other pollutants that have entered onto and currently 8 remain on his property, the value of the Mr. McNamara’s property has declined. His property is also

9 worth less now that it is public knowledge that the property is so close to a notorious polluter and 10 located within the known toxic hotspot created by the Facility. 11 60. 12 Had Plaintiff McNamara known about the dangerous emissions from the Facility, including 13 nickel, arsenic, and chromium, he would not have bought his house or paid as much for it as he did. 14 61. 15 After he learned of Defendants’ dangerous air pollution, Plaintiff McNamara’s use and

16 enjoyment of his property declined significantly. For example, he has always enjoyed being in his yard, 17 has been an avid gardener, and maintained a vegetable garden in his yard. Since Mr. McNamara learned 18 that his property is within the plume of Defendants’ nickel and arsenic emissions, he has significantly 19 curtailed his use of his yard, stopped gardening there, and not eaten produce from his yard, in an attempt

20 to limit his exposure to Defendants’ emissions. 21 62. 22 Plaintiff McNamara is also suffering economic harm as a result of Defendants’ toxic air

23 emissions. Mr. McNamara rents rooms in his house, both on a long-term basis, and on a short-term basis 24 via AirBNB. After learning about Defendants’ air emissions, one of Mr. McNamara’s long-term tenants 25 gave notice that he would not renew his lease because he did not wish to live in a house located in the 26 toxic hotspot created by Defendants. Additionally, Mr. McNamara has had fewer bookings via AirBNB 27 for his short-term rentals since the news about Defendants’ toxic emissions became publically known. 28 Plaintiff Debra Taevs 30 Class Action Complaint KELLER ROHRBACK L.L.P. 31 14 KAMPMEIER & KNUTSEN, PLLC SMITH & LOWNEY, PLLC

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1 63. 2 Plaintiff Debra Taevs lives within one block of The Facility. Her home is within the Affected 3 Area. Plaintiff Taevs has lived in her current home since buying it in January 2007. She did not know 4 when she bought her home, and could not have reasonably known, that it was located in a hotspot of 5 toxic air emissions from the Facility. 6 64. 7 The Facility has emitted nickel and other pollutants that have entered into and currently remain 8 on Plaintiff Taevs’s property. As a result, the value of her property has declined. Plaintiff Taevs’s

9 property is also worth less now that it is public knowledge that the property is so close to a notorious 10 polluter and located within the known toxic hotspot created by Defendants. 11 65. 12 Had Plaintiff Taevs known about the dangerous emissions from the Facility, including nickel, 13 arsenic, and chromium, she would not have bought her house or paid as much for it as she did. 14 66. 15 After learning of Defendants’ dangerous air pollution and that she was living within the plume of

16 arsenic and nickel emitted by the Facility, Plaintiff Taevs’s use and enjoyment of her property declined 17 significantly. Initially after buying her home in 2007, Plaintiff Taevs and her husband invested 18 substantially in remodeling their home and gardens, turning their “fixer house” into the cozy and 19 charming home they had hoped to live in permanently. They transformed the barren yard into a

20 seemingly vibrant one, with fruit trees, berries, flowers, bushes, a large chicken coop, shed, flowered 21 archway, raised garden beds, rain barrels, and more. Now, Plaintiff Taevs’s dreams and her ability to use 22 and enjoy her property have been dashed by Defendants’ contamination of the property and the

23 legitimate concerns she has about health impacts from that pollution. The pleasure that Plaintiff Taevs 24 had in creating and maintaining a beautiful and bountiful home has been reduced, and she has ceased 25 engaging in outdoor gardening. She now derives considerably less enjoyment of her home’s vegetation 26 and other outdoor amenities. 27 67. 28 30 Class Action Complaint KELLER ROHRBACK L.L.P. 31 15 KAMPMEIER & KNUTSEN, PLLC SMITH & LOWNEY, PLLC

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1 Plaintiff Taevs has also changed other habits as a direct result of having learned of Defendants’ 2 toxic air emissions. She spends less time outside, and if walking or biking she leaves the neighborhood, 3 rather than spending time in her own neighborhood with its contaminated air. She routinely drives away 4 from her neighborhood to try to avoid breathing in the contaminants the Facility emits. She no longer 5 bikes near the Facility nor along the bike path adjacent to the Facility. 6 68. 7 Plaintiff Taevs once gardened avidly, deriving significant pleasure from growing flowers and 8 vegetables in her large yard. Now that she has learned that she may have been putting herself and her

9 guests in danger by contact with contaminated soil or the ingestion of tainted produce, Plaintiff Taevs 10 has seriously curtailed her use of her garden and yard. 11 69. 12 Plaintiff Taevs used to enjoy opening the windows of her home when the weather was warm, and 13 listening to birds in the nearby trees. However, now she keeps her windows closed whenever possible 14 and she has purchased an in-home air filter to try to reduce her exposure to the neighborhood toxins 15 generated by the Facility.

16 CLASS ALLEGATIONS 17 70. 18 This action is maintainable as a class action under Oregon Rule of Civil Procedure 32(A) and 19 (B).

20 71. 21 The class definition(s) may depend on the information obtained through discovery. 22 Notwithstanding, at this time, Plaintiffs bring this class action and seek certification of the claims and

23 certain issues in this action on behalf of a Class of individuals defined as: All persons who (a) currently 24 own property in the Affected Area or (b) currently reside in the Affected Area. Excluded from the class 25 are: (1) Defendants, any entity or division in which Defendants have a controlling interest, and their 26 legal representatives, officers, directors, assigns, and successors; and (2) the judge to whom this case is 27 assigned and the judge’s staff. 28 72. 30 Class Action Complaint KELLER ROHRBACK L.L.P. 31 16 KAMPMEIER & KNUTSEN, PLLC SMITH & LOWNEY, PLLC

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1 Plaintiffs reserve the right to amend the Class definition. 2 73. 3 All members of the Class were and are similarly affected by Defendants’ wrongful conduct and 4 emissions from the Facility 5 A. Numerosity 6 74. 7 Because there are estimated to be thousands of people that reside within the Affected Area, the 8 number of individuals in the Class is so large as to make joinder impracticable. Class Members may be

9 notified of the pendency of this action by recognized, Court-approved notice dissemination methods, 10 which may include U.S. Mail, electronic mail, Internet postings, and/or published notice. 11 B. Common Questions of Law and Fact Predominate 12 75. 13 There are numerous questions of law and fact common to Plaintiffs and Class Members that 14 predominate over questions affecting only individual members, including: 15 a. Whether Defendants trespassed onto Class Members’ property and land enjoyed by Class

16 Members; 17 b. Whether Defendants’ operations, including emissions of pollutants from the Facility, 18 constitute a public and/or private nuisance; 19 c. Whether Defendants owed any duties to Class Members;

20 d. Whether and how Defendants’ conduct harmed Class Members; 21 e. Whether Defendants interfered with Class Members’ use and enjoyment of their 22 property;

23 f. Whether Class Members’ personal or real property has been damaged; and 24 g. Whether Class Members are entitled to injunctive relief; 25 C. Typicality 26 76. 27 The claims asserted by Plaintiffs in this action are typical of the claims of the Class Members, as 28 the claims arise from the same course of conduct by Defendants, are based on the same legal theories, 30 Class Action Complaint KELLER ROHRBACK L.L.P. 31 17 KAMPMEIER & KNUTSEN, PLLC SMITH & LOWNEY, PLLC

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1 and the relief sought within the Class is common to the Class Members. Further, there are no defenses 2 available to Defendants that are unique to Plaintiffs. 3 D. Adequacy 4 77. 5 Plaintiffs will fairly and adequately represent and protect the interests of the Class. Plaintiffs are 6 adequate representatives of the Class because their interests do not conflict with the interests of the Class 7 members they seeks to represent, and they have retained counsel competent and experienced in both 8 environmental and class action litigation. Plaintiffs and Plaintiff’s counsel will fairly and adequately

9 protect Class Members’ interests. Undersigned counsel have represented persons in a variety of actions 10 where they have sought to protect individuals, property, and public health from industrial pollution. 11 E. Predominance and Superiority of Class Action 12 78. 13 The prerequisites to maintaining a class action pursuant to Rule 32(A) and (B) are met because 14 questions of law and fact common to each Class Member predominate over any questions affecting only 15 individual members and a class action is superior to other available methods for fairly and efficiently

16 adjudicating the controversy. Individual litigation would be economically impracticable for individual 17 Class Members and would risk inconsistent judgments, whereas class action litigation will be 18 economical and efficient for all parties and the courts. 19 F. Declaratory and Injunctive Relief

20 79. 21 Certification also is appropriate because Defendants acted, or refused to act, on grounds 22 generally applicable to the Class, thereby making the injunctive relief sought on behalf of the Class

23 appropriate under Rule 32(B)(2). 24 G. Notice 25 80. 26 Plaintiffs provided notice and a demand for damages to Defendants pursuant to ORCP 32H at 27 least thirty days prior to filing this Amended Complaint seeking damages, and no Defendant has 28 satisfied that demand. 30 Class Action Complaint KELLER ROHRBACK L.L.P. 31 18 KAMPMEIER & KNUTSEN, PLLC SMITH & LOWNEY, PLLC

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1 FIRST CLAIM FOR RELIEF 2 (Trespass) 3 81. 4 Plaintiffs re-allege all the foregoing paragraphs and further allege: 5 82. 6 Defendants’ conduct has caused, either negligently, willfully, recklessly, or intentionally, one or 7 more trespasses onto land possessed by Plaintiffs and Class Members, including by emitting particles of 8 toxic metals and other pollutants onto such land, and this conduct disturbs Plaintiffs’ and Class

9 Member’s rights to exclusive use and possession of such land. 10 83. 11 Plaintiffs and Class Members, have not given Defendants permission to emit toxic metal 12 particles onto the land that Plaintiffs and Class Members possess. 13 84. 14 Defendants’ conduct that resulted in trespasses was and is either negligent, reckless, intentional, 15 and/or abnormally dangerous.

16 85. 17 As a result of Defendants’ conduct, Plaintiffs’ home and personal property have been 18 contaminated with toxic metals and other pollutants. 19 86.

20 By trespassing on Plaintiffs’ and Class Members’ properties, Defendants have significantly 21 injured Plaintiffs and Class Members, their property, the plants and landscaping on their land, and the 22 value of the property. By depositing arsenic, nickel, and other pollutants on the properties of Plaintiffs

23 and Class Members, Defendants have also been the proximate cause of the diminished the value of those 24 properties. 25 87. 26 Unless Defendants are enjoined from further conduct of the type alleged, Plaintiffs and Class 27 Members will continue to suffer significant and irreparable injury. Plaintiffs and Class Members have 28 no adequate remedy at law to prevent such ongoing conduct. Plaintiffs and Class Members are entitled 30 Class Action Complaint KELLER ROHRBACK L.L.P. 31 19 KAMPMEIER & KNUTSEN, PLLC SMITH & LOWNEY, PLLC

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1 to a permanent injunction and an Order directing Defendants to take all necessary steps to prevent 2 further injury to Plaintiffs, including removing the particles it has caused to be deposited on Plaintiffs’ 3 and other Class Members’ property. 4 88. 5 The requested injunction is in the public interest. 6 89. 7 Any compliance by Defendants with applicable laws or permit conditions does not excuse 8 Defendants’ trespass or any other tort.

9 90. 10 Any hardship allegedly caused to the Defendants by such an injunction is greatly outweighed by 11 the benefits resulting to Plaintiffs and the Class Members: including, but not limited to, the ability to live 12 secure in the knowledge that the air they breathe, and the land they live on and enjoy and rely on for 13 food, are safe. 14 91. 15 Any hardship allegedly caused to the Defendants by such an injunction is far outweighed by the

16 benefits resulting to Plaintiffs and the Class Members: the ability to live secure in the knowledge that the 17 air they breathe and the land they live on and enjoy are safe. 18 92. 19 As a result of Defendants’ conduct, Plaintiffs and Members of the Class have each suffered or

20 will each have suffered: 21 a. Testing expenses to determine the level of heavy metals in Plaintiffs’ and Class 22 Members’ and their family member’s bodies, in a sum the jury determines to be fair but

23 in no event to exceed $3,000 per person; 24 b. Testing expenses to determine the level of heavy metals on the Plaintiffs’ and Class 25 Members’ property, in a sum the jury determines to be fair but in no event to exceed 26 $8,000 per lot; 27 28 30 Class Action Complaint KELLER ROHRBACK L.L.P. 31 20 KAMPMEIER & KNUTSEN, PLLC SMITH & LOWNEY, PLLC

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1 c. Damage to or the loss of personal property, including but not limited to produce or other 2 edible plants or fruit from the trees or bushes cultivated by Plaintiffs and Class Members, 3 in a sum the jury determines to be fair but in no event to exceed $5,000 per household; 4 d. Clean up or remediation expenses to remove or contain and make safe the levels of heavy 5 metals found on the Plaintiffs’ and Class Members’ property, in a sum the jury 6 determines to be fair but in no event to exceed $100,000 per lot; 7 e. Diminution in value of property that the Plaintiffs and Class Members own that is within 8 the known plume of the Defendants’ toxic emissions, in a sum the jury determines to be

9 fair but in no event to exceed $125,000 per lot; 10 f. The loss of use and enjoyment of property Plaintiffs and Class Members have suffered as 11 a result of Defendants’ toxic emissions, in a sum the jury determines to be fair but in no 12 event to exceed $150,000 per person; 13 g. The expense of future medical monitoring of the Plaintiffs and/or their family members, 14 and Class Members to determine the nature of the long term harm created by exposure to 15 the Defendants’ toxic emissions, in a sum the jury determines to be fair but in no event to

16 exceed $150,000 per person; and 17 h. The loss of use of the funds expended to test and/or clean up Plaintiffs’ and Class 18 Members’ property, in a sum to be calculated using prejudgment interest at the highest 19 allowable rate – which is currently 9% per annum; all to Plaintiffs’ economic damages in

20 a sum to be proven at trial. 21 SECOND CLAIM FOR RELIEF 22 (Nuisance)

23 93. 24 Plaintiffs re-allege the paragraphs 1 through 80 and 92, and further allege: 25 94. 26 Defendants’ emissions of arsenic, nickel, and other air pollutants from its Facility constitute a 27 nuisance. 28 95. 30 Class Action Complaint KELLER ROHRBACK L.L.P. 31 21 KAMPMEIER & KNUTSEN, PLLC SMITH & LOWNEY, PLLC

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1 Defendants’ emissions of arsenic, nickel and other air pollutants spread across Portland and 2 Milwaukie, affecting people who live, work, and travel through the region. 3 96. 4 Defendants’ emissions have substantially and unreasonably interfered with the use and 5 enjoyment of Plaintiffs’ and Class Members’ property, and have harmed their property and/or the 6 vegetation on their property, and have caused permanent injury to their real property. 7 97. 8 As a result of Defendants’ emissions, Plaintiffs have changed their habits and practices to avoid

9 activities and rights attendant to property ownership in which they used to partake – such as gardening, 10 enjoying the immediate physical environment outside their homes, or enjoying the movement of air 11 near, by, and through their homes. Plaintiffs’ and Class Members’ reasonable concerns about the 12 contamination of their property and/or their persons by Defendants’ pollutants, and their concerns about 13 whether they and their family and their guests can safely play in or use their yards without putting their 14 health (and that of their children and pets) at risk, has reduced their enjoyment of their property. 15 98.

16 Plaintiffs and the Class Members are harmed based on this interference with the use and 17 enjoyment of their property, and by the nature of the injury Defendants’ emission have caused to their 18 real property. 19 99.

20 Those emissions and Defendants’ ongoing operations have also depressed or diminished the 21 value of Plaintiffs’ and Class Members’ property. 22 100.

23 Defendants’ interference with Plaintiffs’ and Class Members’ use and enjoyment of their land is 24 unreasonable. It is not reasonable of Defendants to knowingly emit significant amounts of toxic 25 contaminants into a residential area where schools and children are present and where families garden. It 26 is also not reasonable to expect Plaintiffs and Class Members to bear the burden or suffer the harm that 27 Defendants have caused and continue to cause them. 28 101. 30 Class Action Complaint KELLER ROHRBACK L.L.P. 31 22 KAMPMEIER & KNUTSEN, PLLC SMITH & LOWNEY, PLLC

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1 While remediation of the permanent injury Defendants have caused may not be reasonably 2 attainable, the cost of adequately controlling and containing Defendants’ emissions is modest, 3 particularly when compared to the harm that Plaintiffs and Class Members have been forced to bear as a 4 result of Defendants’ decision to try to externalize rather than bear those costs. The concrete and 5 ongoing harms Plaintiffs and Class Members have suffered are far greater than they should be forced to 6 bear in their predominantly residential neighborhood. 7 102. 8 Defendants’ conduct in creating a nuisance was and/or is negligent, reckless, intentional, and/or

9 abnormally dangerous. 10 103. 11 Any alleged compliance by Defendants with applicable laws or permit conditions does not 12 excuse Defendants’ creation of a nuisance, or Defendants’ causing harm or damages to Plaintiffs or 13 other Class Members or their property. 14 104. 15 Plaintiffs seek an injunction ordering Defendants to abate, insofar as it is possible, the nuisance

16 of Defendants’ emissions by cleaning up the contamination on and around Plaintiffs’ and Class 17 Members’ homes and also compensating them for the diminished value of those homes, and by ceasing 18 the emission of air pollutants at levels that interfere with any reasonable use of the surrounding 19 properties and neighborhood.

20 105. 21 As a result of Defendants’ conduct, Plaintiffs and Members of the Class have each suffered or 22 will each have suffered the harms as detailed in paragraph 92, and incorporated herein by reference.

23 106. 24 THIRD CLAIM FOR RELIEF 25 (Negligence) 26 107. 27 Plaintiffs re-allege the paragraphs 1 through 80 and 92 and further allege: 28 108. 30 Class Action Complaint KELLER ROHRBACK L.L.P. 31 23 KAMPMEIER & KNUTSEN, PLLC SMITH & LOWNEY, PLLC

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1 By emitting particulate emissions onto the land possessed by Plaintiffs and the Class, Defendants 2 disturbed Plaintiffs’ and Class members’ rights to exclusive possession of that land and physically 3 harmed that property. 4 109. 5 Defendants directly or indirectly allow particles from the Facility to enter on to and remain on 6 Plaintiffs’ and Class Members’ land. 7 110. 8 Defendants were unreasonable in the operation of the Facility, in one or more of the following

9 ways: 10 a. Defendants failed or neglected, and continue to fail or neglect, to install appropriate 11 emissions control equipment on each of their furnaces, when Defendants knew or should 12 have known that failure to do so could result in emission of pollutants that would likely 13 travel to and land on neighboring properties; 14 b. Defendants failed or neglected, and continue to fail or neglect, to monitor their emissions 15 on a regular basis to determine if pollutants were escaping from the Facility, when

16 Defendants knew or should have known that failure to do so could result in emission of 17 pollutants that would likely travel to and land on neighboring properties; 18 c. Defendants failed or neglected, and continue to fail or neglect, to install appropriate 19 emissions control equipment on the portions of the Facility where fugitive emissions

20 might escape, when Defendants knew or should have known that failure to do so could 21 result in emission of pollutants that would likely travel to and land on neighboring 22 properties;

23 d. Defendants failed or neglected, and continue to fail or neglect, to monitor the Facility’s 24 fugitive emissions on a regular basis to determine if pollutants were escaping, when 25 Defendants knew or should have known that failure to do so could result in emission of 26 pollutants that would likely travel to and land on neighboring properties; 27 e. Defendants failed or neglected, and continue to fail or neglect, to properly train their 28 employees to operate the Facility in a way that would not allow emissions, when 30 Class Action Complaint KELLER ROHRBACK L.L.P. 31 24 KAMPMEIER & KNUTSEN, PLLC SMITH & LOWNEY, PLLC

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1 Defendants knew or should have known that failure to do so could result in emission of 2 pollutants that would likely travel to and land on neighboring properties; 3 f. Defendants failed or neglected, and continue to fail or neglect, to construct the Facility in 4 a way that would preclude emissions, when Defendants knew or should have known that 5 failure to do so could result in emission of pollutants that would likely travel to and land 6 on neighboring properties; 7 g. Defendants failed or neglected, and continue to fail or neglect, to maintain the Facility in 8 a way that would prevent emissions, when Defendants knew or should have known that

9 failure to do so could result in emission of pollutants that would likely travel to and land 10 on neighboring properties; 11 h. Defendants failed or neglected, and continue to fail or neglect, to maintain the Facility in 12 a way that would prevent fugitive emissions, when Defendants knew or should have 13 known that failure to do so could result in emission of pollutants that would likely travel 14 to and land on neighboring properties; 15 i. Defendants failed or neglected to warn the neighbors that the Facility was emitting

16 dangerous pollutants, when Defendants knew or should have known that failure to do so 17 could result in damage to the neighbors, and the neighbors’ children, guests, and/or 18 properties. 19 j. Defendants knew or should have known that their conduct was causing a foreseeable risk

20 of harm because: 21 i. they knew that they used and generated dangerous pollutants at the Facility; 22 ii. they knew that they were obligated under state and federal laws to monitor and

23 report on emissions from the Facility; 24 iii. they knew that they were providing personal protective gear to employees 25 working with the same materials and pollutants as those that escaped the Facility; 26 iv. they knew that they Facility was located in a primarily residential neighborhood; 27 v. they knew that material filtered from the Facility’s emissions were required to be 28 disposed of as hazardous materials; and 30 Class Action Complaint KELLER ROHRBACK L.L.P. 31 25 KAMPMEIER & KNUTSEN, PLLC SMITH & LOWNEY, PLLC

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1 vi. they could foresee that by emitting toxic metals they could damage the health, 2 property, or both of those living near the Facility. 3 111. 4 As a result of Defendants’ conduct, Plaintiffs and Members of the Class have each suffered or 5 will each have suffered the harms as detailed in paragraph 92, and incorporated herein by reference. 6 7 REQUEST FOR RELIEF 8 WHEREFORE, Plaintiffs individually and on behalf of the Class, request the following relief:

9 A. An Order certifying that this action is properly brought and may be maintained as a class 10 action pursuant to Rule 32, that Plaintiffs be appointed the class representative, and that Plaintiffs' 11 counsel be appointed counsel for the Class; 12 B. An Order directing Defendants to preserve documents and other information related to 13 Plaintiffs’ current claims and any future damages claims; 14 C. An Order declaring that Defendants’ conduct violates the trespass, nuisance, and/or 15 negligence provisions of Oregon law;

16 D. An Order requiring Defendants to cease any ongoing or active trespass of Plaintiffs’ 17 properties; 18 E. An Order enjoining Defendants from releasing nickel, arsenic, and other toxic pollutants 19 into the air at levels that interfere with any reasonable use of the surrounding properties and

20 neighborhood; 21 F. Require Defendants to provide notice to the Class informing Class Members of the 22 pendency of this action and providing notice of the toxic releases from the Facility and appropriate

23 measures that Class Members may take to protect themselves, their families, and guests from exposure; 24 G. Require Defendants to develop and implement a plan for providing environmental 25 monitoring, investigation, and remediation, including (i) monitoring Facility emissions of toxic metals, 26 including nickel and arsenic; (ii) ambient air monitoring of toxic metals; (iii) prompt testing and 27 identification of metal emissions deposits on land within the Impacted Area; and (iv) remediation of 28 deposits on land; and allow Plaintiffs and Class Members to participate in development of that plan; 30 Class Action Complaint KELLER ROHRBACK L.L.P. 31 26 KAMPMEIER & KNUTSEN, PLLC SMITH & LOWNEY, PLLC

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833 S.E. Main Street 1 Mail Box No. 318; Suite 327 Karl G. Anuta (Bar No. 861423 Portland, OR 97214 [email protected] 2 LAW OFFICE OF KARL G. ANUTA, P.C. Telephone: (503) 841-6515 735 S.W. First Avenue 3 Strowbridge Bldg, Second Floor Attorneys for Plaintiffs Portland, Oregon 97204 4 Telephone: (503) 827-0320 Fascimile: (503) 228-6551 5 Attorneys for Plaintiffs 6

7 8

9 10 11 12 13 14 15

16 17 18 19

20 21 22

23 24 25 26 27 28 30 Class Action Complaint KELLER ROHRBACK L.L.P. 31 28 KAMPMEIER & KNUTSEN, PLLC SMITH & LOWNEY, PLLC

32 EXHIBIT 1

EXHIBIT 2

EXHIBIT 3